Gulab Singh vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s 374 of the Code of Criminal Procedure 1974 has been preferred by the accused/appellant having being aggrieved by a judgment dated 25th July 2000 delivered in S.T. No. 153/99 by the Additional Sessions Judge Lahar, district Bhind convicting the accused for causing death of Bachhu @ Parasram, which is an offence punishable u/s 302 of I.P.C. and sentencing him to suffer life imprisonment with a fine of Rs. 5,000/- and in default to undergo three months'' more sentence. Shorn of unnecessary details, the facts material for the adjudication of the present case, as per prosecution''s own case are that at about 1 p.m., Parwat, son of accused Gulab Singh went to the house of complainant and pelted a stone aiming at the son of the complainant, namely, Nehpal Singh, but it missed and hit inner wall of the house. When the complainant Bachhu @ Parasram informed of this act to the accused Gulab Singh he being enraged brought an Axe and inflicted an injury to Bachhu @ Parasram as a result of which Bachhu died on the spot. The accused then fled away with blood stained Axe from the spot. Complainant Mani, wife of deceased lodged the F.I.R. at police station, Daboh, district Bhind, which was 14 k.m. away from the place of incident. On her report, the investigation was set into motion. After FIR was lodged, the Investigating Officer on the day of incident conducted the investigation and prepared spot-map vide Ex. P/1, seized blood stained and simple soil vide seizure memo (Ex. P/4), prepared memo of dead body vide Ex. P/3 and thereafter sent the dead body for postmortem to the Community Health Centre on that day of incident. Postmortem was done on the same day. The case-diary statements of the witnesses were recorded on different dates. The accused was arrested and after investigation, the charge-sheet was filed before the criminal court, having jurisdiction. On committal, the Sessions trial commenced and after recording the evidence, the present accused-appellant was convicted and sentenced for commission of the alleged offence, hence this appeal.

The contention of the learned counsel appearing for appellant is that the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that to prove the guilt against accused, the prosecution examined chance/eye-witnesses, namely, Mani (PW-6), the complainant, who is wife of deceased, Lallu (PW-1), brother-in-law of deceased, Dhakeli (PW-2), wife of elder brother of deceased (Bhabhi), Prabhu (PW-3), the village watchman, Birkhe (PW-4), the neighbour of deceased, Nehpal (PW-7) son of deceased, Munna (PW-8), cousin of deceased and Dr. S.K. Singh Niranjan (PW-9), who performed autopsy on the body of deceased. It is submitted by the learned counsel that the statements of above witnesses do not corroborate with each other and same contained so many contradictions/omissions. The depositions of ocular witnesses do not support the medical evidence. The prosecution did not produce the Investigating Officer before the trial court during investigation which also creates a grave suspicion in placing relied on the prosecution version. On the aforesaid submissions, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellant may be acquitted of the charges framed by the trial court.

Per contra, the learned Public Prosecutor appearing on behalf of the respondent/State contended that the prosecution remained throughout successful to prove the guilt against the accused by examining eye-witnesses and their versions also received strength from the medical evidence. With respect to the contradictions, it is submitted that the witnesses like present case are generally belong to village side and they being illiterate and rustic, the contradictions and omissions as appeared are natural and believable which do not otherwise effect the case of the prosecution. In that case, non-examination of the Investigating Officer will not affect the case adversely. It is thus argued that the prosecution by adducing evidence successfully proved the guilt of the accused. Hence, it is prayed that by dismissing the appeal, the conviction and sentence of the accused may be upheld.

The question for consideration in this appeal is whether the trial Judge passed the Judgment of conviction and sentence in a proper and justified manner, leaving no room for doubt in the assessment of evidence made by him for reaching at the conclusion?

Heard the learned counsel appearing for the appellant and the learned Public Prosecutor for the respondent/State. Also perused the record of the trial court and the law applicable to the present case.

The defence taken by the accused is that some of the prosecution witnesses are related with each other whereas some of them are having inimical relations against the accused and therefore, the false implication of the accused is possible.

Now, we are going to consider the evidence led by the prosecution for resting the conviction of the accused.

To prove the guilt against the accused, the prosecution examined witnesses, namely, Mani (PW-6), the complainant who is wife of deceased, Lallu (PW-1), brother-in-law of deceased, Dhakeli (PW-2), wife of elder brother of deceased (Bhabhi), Prabhu (PW-3), the village watchman, Birkhe (PW-4), the neighbour of deceased, Nehpal (PW-7) son of deceased, Munna (PW-8), cousin of deceased. They deposed in one breath that on the day of incident all were present in the house of deceased. By that time Parwat, s/o. accused Gulab Singh came in front of the side of the house of deceased and pelted stone aiming at Nehpal (PW-7) the son of deceased but his target failed as the stone hit inside the wall of house. Father of Nehpal came out of his residence who made a complaint to the father of Parwat about the act of his son. Thereafter they started abusing to each other. Afterwards, accused went to his residence and came back having an Axe with him with which he caused injury on the head of deceased who by that time was sitting at the platform of his house. The deceased was seriously injured and died on the spot. Mani (PW-6), wife of the deceased with village watchman went to police station for lodging report. Statements of above witnesses who were close or distinctly related to the deceased were supported by chance witness Birkhe (PW-4), who at time of incident was going from river after taking bath and reached on the spot and saw the incident.

Dr. S.K. Singh Niranjan (PW-9) deposed that at the relevant time, he was posted as a Medical Officer in the Primary Health Centre, Lahar district Bhind. On 5th May 1999 at about 7-30 a.m., he performed postmortem on the dead body of Bachhu @ Parasram, resident of village Khilli, which was brought by Umesh Dixit, Constable No. 491 of police station Daboh and identified by Munna son of Patiram and cousin of deceased, resident of Daboh. The doctor found the following injuries on the person of the deceased:-

(i) Incised wound of size 3" x 1/2"x brain matter deep in size, situated over mid parietal region of skull, placed longitudinally at the sagittal suture line. Clotted blood present inside and around the wound. On opening this injury found that there are fractures of right and left parietal bones i.e., both of the parietal bones are cutted in the line of this injury. Brain meninges also injured with tired in the direction of this injury with damage to the brain matter of both right and left parietal lobes in mid-line to the extent of 0.5 cm. x 1.2.5 cm. x 02 cm. in size. Clotted blood present inside the injured brain matter of both parietal lobes of brain and over the surface of brain matter underneath the skull bones.

As per the doctor, the above mentioned injury was ante-mortem in nature and was caused by hard sharp edged cutting object. Time since death was within 4 to 24 hours from postmortem examination. The doctor further opined that the cause of death was coma due to injury to brain matter. Mode of death was the external and internal injuries caused by hard and sharp edged weapon like Axe or any other like this weapon. Nature of death was homicidal. Said postmortem report is Ex. P/7, written and signed by him.

Hotam Singh (PW-5), who was posted as Head Constable in the Police Station Daboh deposed that on 6th May 1999, he on production from Primary Heath Centre where postmortem on the body of deceased was conducted, seized the cotton sealed bundle vide Ex. P/5. However, the prosecution did not keep ready the Investigating Officer for recording his statement before the trial Judge.

To sum up the prosecution evidence as discussed above, it is proved by statements of Mani (PW-6), wife of deceased, Nehpal (PW-7), the child witness and son of deceased, Lallu (PW-1), brother-in-law of the deceased, Dhakeli (PW-2) and Munna (PW-8) cousin of deceased, who all are related witnesses but not inimical and their presence in the house of deceased was natural, that on the day of incident, in the beginning, Parwat son of accused pelted stone inside the house of deceased aiming at his son Nehpal (PW-7) which act was reported to accused by the father of Nehpal. After petty quarrel, the accused went inside of his house and brought an Axe and caused grave injury to the deceased which was received on the head (a vital part of the body) as a result of which Bachhu died instantaneously on the spot. Mani (PW-6), wife of deceased went to Prabhu, the watchman of village and then both went to the concerned police station for lodging the F.I.R. The statements of above related witnesses were well supported by Birkhe (PW-4) an independent/chance witness who at the relevant time was coming back after taking bath from his field and Prabhu (PW-3), the watchman of village. When the statements of witnesses, who are relatives, or are parties known to the affected party, are credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party. It is also clear that the presence of above witnesses at the place of occurrence was natural. Apart from it, their statements are trustworthy and corroborated by other evidence and same do not suffer from the vice of suspicion or uncertainty. In such matters the court has to give credence to their statements as they have lost their close relations and have no reason to falsely implicate the accused person (See: State of Haryana Vs. Shakuntla and Others, It also appears that witnesses of this case are rustic, illiterate and belonged to rural side so the contradictions and omissions in their evidence which do not go to the root of the incident which can make them unreliable, are natural flow and on that ground the entire ocular evidence could not be thrown out. In such cases, non-examination of Investigating Officer in proving the weapon of crime would not be fatal to the prosecution specially when the incident is otherwise proved beyond all reasonable doubts. Thus, looking to the ocular evidence as discussed above coupled with medical opinion, we are of the firm opinion that the trial Judge rightly hold that the accused after short quarrel over pelting stone inside the house of deceased aiming at the son of deceased, in the heat of passion killed the deceased by means of an Axe.

Now, the sole question which arises for consideration in this appeal is confined to the issue as to what offence has been committed by the accused under the facts and circumstances of the present case?

The intention or knowledge necessary in order to render killing culpable homicide must be clearly proved by the prosecution which can usually be done by proof of the circumstances which prove the act or omission in question for the presumption is that a man knows the probable result of his conduct. At this juncture it would be relevant to reproduce the relevant law.

Section 300 Exception- Where culpable homicide is not murder:

Exception 1: Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

Firstly - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of [private defence.

Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

In the case of Laxminath Vs. State of Chhattisgarh, , the Hon. Apex court held:-

In the scheme of the IPC culpable homicide is genus and ''murder'' its specie. All ''murder'' is ''culpable homicide'' but not vice-versa. Speaking generally, ''culpable homicide'' sans ''special characteristics of murder is culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree''. This is the gravest form of culpable homicide, which is defined in Section 300 as ''murder''. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

Again, in the case of A. Maharaja Vs. State of Tamil Nadu, the Apex court held:

The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ''sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage.

In the light of the aforesaid discussions on the factual and legal aspects of the matter, it appears from the ocular and medical evidence of prosecution and defense on record that on the date of incident firstly there was a quarrel took place between the deceased and accused on pelting stone inside the house of deceased hitting his son Nehpal and on making complaint to accused, the accused after short quarrel brought an Axe from his house, which was situated nearby the place of incident and in the heat of passion caused one serious injury by single blow of an Axe on the head of deceased a vital part of body, resultantly he died on spot. Thus, it appears that the accused due to grave and sudden provocation was deprived of self-control and killed the deceased on the spot. It is well settled in law that where there is no evidence on record suggesting that the accused had the intention to cause such bodily injury as he knew to be likely to cause death, he cannot be convicted for murder within the meaning of Section 300 of I.P.C. In the facts and circumstances of the present case, the appellant is proved to have committed the offence of culpable homicide without premeditation in a sudden fight and in the heat of passion, which is punishable u/s 304 Part-I of I.P.C.

Accordingly, the conviction of the appellant is altered from Section 302 of I.P.C. to Section 304 Part-I of I.P.C. Eventually, the findings of the trial court in holding the appellant guilty of offence of murder punishable u/s 302 of I.P.C. are set aside and the appellant is held guilty for the commission of offence of culpable homicide not amounting to murder, punishable u/s 304 Part-I of I.P.C. and sentenced to undergo rigorous imprisonment of ten years which the accused has already suffered as under trial and after conviction and to pay a fine of Rs. 15,000/- (Rs. Fifteen thousand only) in addition to the amount of Rs. 5,000/-(Rs. Five thousand only), as imposed by the trial Judge. The fine amount shall be deposited within a period of six month from the date of this judgment and in case of failure to deposit same within the period, it shall be recovered from the properties of the accused. The fine amount after realisation shall be awarded as compensation u/s 357 of Cr.P.C. to the successors of the deceased. In case of failure to deposit the fine amount, the appellant shall suffer rigorous imprisonment of two years'' R.I. In view of what has been stated above, the appeal stands allowed in part.